Godavari Foundation Vs. State of Maharashtra and ors. - Court Judgment

Excerpt:
[a] maharashtra university of health sciences act, 1999 - sections 65(1) and 64(5) proviso - affiliation to health university - grant of permission by state government to start nursing college - refusal of proposal for affiliation by health university on the ground that the proposal was in contravention of the perspective plan prepared by the health university - power of health university absolute - grant of permission/approval by state government has no bearing on the issue of grant of affiliation.;the moot question that requires consideration is that if the state government grants permission/approval in exercise of powers under the proviso to sub-section (5) in breach of the conditions contained in the perspective plan, is it or is it not open for the academic council (health university) to decline or reject the affiliation claimed by the management. as sub-section (1) ofs. 65 gives finality to the decision of the academic council in regard to its decision about grant or refusal of affiliation, it is obvious that the permission/approval granted by the state government cannot have any bearing on the issue of grant of affiliation. the power of the health university in the matter of grant of affiliation or rejection thereof, in conformity with the perspective plan is absolute.;[b] maharashtra university of health sciences act, 1999 - section 65 - first time affiliation - grant of application for - rejection of the application by academic council - the decision adversely affects the civil rights of the petitioner institution - the institution had a right a being heard, in the matter before rejection of the application - principles of nature justice are required to be read in the section.;when the academic council, in exercise of powers under section 65 declines to grantfirst time affiliation, then the said decision does adversely affect the civil rights of the petitioner and/or the management claiming affiliation and as such, it is necessary to read the principles of natural justice in section 65 of the act. before rejecting the application seeking first time affiliation, the petitioner had a right of being heard in the matter, so that the petitioner could have demonstrated that it has substantially complied with the requirements of the perspective plan. - land acquisition act, 1894 [c.a. no. 1/1894]. sections 23 & 24; [swatanter kumar, cj, n.v. dabholkar & m.g.gaikwad, jj] determination of market value held, no straight jacket formula can be provided to resolve all controversies uniformly. onus to prove entitlement to higher compensation is upon claimants. parties have to lead evidence to show that lands have greater potential and value. the decision of the division bench reported in state of maharashtra & ors v vithal rodbaji shinde, 1993 lac 233 that bagayat (irrigated) land would fetch double price than jirayat (dry) land is given in facts and circumstances of case. it cannot be applied as binding precedent de hors facts of case. - section 64 (5) reads thus :64. (5) out of the applications recommended by the university, the government may grant permission to such institutions as it may consider right and proper in its absolute discretion, taking into account the government's budgetary resources, the suitability of the managements seeking permission to open new institutions and the state level priorities with regard to location of institutions of health sciences learning :provided however that, in exceptional cases and for the reasons to be recorded in writing, any application not recommended by the university may be approved by the state government for starting a new college or institution of health sciences learning. ' 3. treating the petitioner's case as an exceptional one, the state government granted the essentiality certificate/approval vide order dated 3rd january, 2003. the govt. therefore, it is recommended that permission to start the nursing courses be given liberally subject to the condition that such courses are started only in the medical colleges recognised by the medical council of india and subject to a maximum intake capacity of 50 seats. sub-section (5), which comes into play in the present matter, provides that out of the applications recommended by the university, the govt. to grant permission to such of the institutions from and out of the applications recommended by the university. in an exceptional case and for reasons to be recorded in writing, to grant approval in favour of a management whose application is not recommended by the university. reading of section 64 as such, clearly brings home the position that only in an exceptional case, and for reasons to be recorded in writing, a deviation from the general rule contained in sub-section (5) can be made by the state govt. the said position clearly emerges from the latter part of sub-section (1) which lays down that the university shall consider the grant of first time affiliation after taking into account whether, and the extent to which, the stipulated conditions have been fulfilled. sub-section (3) as well, empowers the academic council to decide whether affiliation should be granted or rejected.a.p. deshpande, j. 1. the learned counsel for petitioner prays for deletion of respondent no. 2. prayer granted. heard. rule. rule made returnable forthwith. by consent of parties, taken up for final hearing.2. the petitioner is an educational institution registered and governed by the provisions of the bombay public trusts act and societies registration act. the petitioner manages and administers various educational institutions and being desirous of opening a new b.sc. nursing college at jalgaon, made an application the respondent no. 3 - the maharashtra university of health sciences, nasik ( hereinafter referred to as 'the health university'). the health university is expected to scrutinize the proposal and forward the same to the state government. the health university did not favourably recommend the opening of the nursing college by the petitioner. despite the same, the state govt. proceeded to grant permission in exercise of its powers contained in the proviso to sub-section (5) of section 64 of the act. section 64 (5) reads thus :--64. '(5) out of the applications recommended by the university, the government may grant permission to such institutions as it may consider right and proper in its absolute discretion, taking into account the government's budgetary resources, the suitability of the managements seeking permission to open new institutions and the state level priorities with regard to location of institutions of health sciences learning :provided however that, in exceptional cases and for the reasons to be recorded in writing, any application not recommended by the university may be approved by the state government for starting a new college or institution of health sciences learning.'3. treating the petitioner's case as an exceptional one, the state government granted the essentiality certificate/approval vide order dated 3rd january, 2003. the govt. has also passed a resolution dt. 27-2-2003 granting permission to the opening of a new nursing college to the petitioner from academic session 2003-2004, with an intake capacity of 50 students. it is the case of the petitioner that not only the state govt. but the indian nursing council also granted permission to open the new nursing college vide its communication dated 10-2-2003, after causing due inspection. the petitioner, thereafter, sought first time affiliation to the proposed opening of a new b.sc. nursing college from the respondent no. 3 health university. the health university has rejected the first time affiliation by exercising powers under sections 64 and 65 of the act. the order of the university refusing the affiliation is challenged by filing the present petition.4. the reason for rejection is spelt out in the impugned order dt. 20-4-2003, the reason being that the proposal is in contravention of the perspective plan prepared by the health university. it may be noted that though in the order dt. 8-11-2002, no reason is stated, the said reason is very much mentioned in the communication/order dt. 20-4-2003.5. two fold submissions are made on behalf of the petitioner:(1) that the power of the health university in the matter of grant of permission and affiliation to open a new college is fully contained only in section 64 of the act, to the exclusion of all other sections. in the submission of the learned counsel, the state govt. has an overriding power over the university in the matter of grant of permission, by virtue of the proviso to sub-section (5). the submission is, that once the state govt. grants permission to open a new college, overriding the recommendations of the university, relying on the power contained in the proviso, the health university thereafter is precluded from declining to grant first time affiliation and;(2) the second submission is that even assuming that the health university has power to scrutinize the proposal at the touch-stone of the perspective plan, even after the state govt. grants permission, then in that event, the petitioner claims that the proposed new college satisfies, in substance, the requirement of the perspective plan. the grievance is that no opportunity was granted to the petitioner of being heard in the matter before refusing first time affiliation and, had the petitioner been granted an opportunity to place before the academic council the available material to substantiate compliance of perspective plan in substance, the university could have been persuaded to grant the affiliation. the impugned orders are challenged being in violation of principles of natural justice.6. dealing with the first submission, it is the case of the respondent no. 3 health university that it has prepared a perspective plan, which is to operate for a period of 5 years commencing from the year 2001 to 2006. in the perspective plan, the requirements in regard to nursing education is expressly provided for. reading of the perspective plan reveals that, considering the current intake capacity of all the three regions (rest of maharashtra, marathwada and vidarbha) there is urgent need to start courses in nursing in all regions of maharashtra. having regard to the insufficiency of nursing colleges in the state, the need to open a new nursing college is established.the perspective plan proceeds to state further :-- 'training of nursing professionals involve a lot of 'hands on training' therefore, the student teacher ratio and the student patient ratio has to be as minimum as possible. but there is an acute shortage of qualified teachers in core subjects as available post graduate facilities are practically non-existent in the state. in addition, the courses in nursing require adequate number of medical teachers of basic and clinical science subjects, which are only available in medical colleges. therefore, it is recommended that permission to start the nursing courses be given liberally subject to the condition that such courses are started only in the medical colleges recognised by the medical council of india and subject to a maximum intake capacity of 50 seats.'7. the reason for denying affiliation to the petitioner by the health university is that the petitioner does not satisfy the main condition to open a new nursing college inasmuch as it does not have a medical college recognized by the medical council of india.8. it is a settled position in law that decisions in the matter of teaching and education, reached by the expert bodies, such as health university and/or its authorities cannot be easily interfered with by the courts of law, which does not have the requisite expertise in the matter.9. turning back to the first submission, i proceed to examine the scheme contained in sections 64 and 65 of the act.section 64(1) casts an obligation on the health university to prepare a perspective plan for educational development, for the location of the institutions of higher learning in a manner ensuring equitable distribution of facilities of health sciences education, having regard to the need of the region. the plan has to be prepared by the academic council and thereafter, the same is placed before senate through the management council. the said plan has to be updated every 5 years. sub-section (2) requires every application for opening of a new college or institution to be made to the university in conformity with the perspective plan. sub-section (3) lays down that management seeking permission to open new colleges or institutions are to make applications in the prescribed form to the registrar of the university before 1st day of october of the year preceding the year from which the permission is sought. sub-section (4) provides for scrutiny of the applications and forwarding of the applications to the govt., with the recommendations of the management council. sub-section (5), which comes into play in the present matter, provides that out of the applications recommended by the university, the govt. may grant permission to such institutions as it may consider right and proper in its absolute discretion, taking into account the governments budgetary resources, suitability of the management seeking permission to open new institution and the state level priorities, with regard to location of the institution of health sciences.10. the substantive provision in sub-section (5) of section 64 as such, obliges the govt. to grant permission to such of the institutions from and out of the applications recommended by the university. an exception is made to this rule in the proviso to the said sub-section and the proviso enables the govt. in an exceptional case and for reasons to be recorded in writing, to grant approval in favour of a management whose application is not recommended by the university. sub-section (6) directs the management to submit the applications to the health university and not directly to the govt. reading of section 64 as such, clearly brings home the position that only in an exceptional case, and for reasons to be recorded in writing, a deviation from the general rule contained in sub-section (5) can be made by the state govt., in the matter of grant of permission/approval for starting a new college.11. so far as section 65 is concerned, the same lays down the procedure for affiliation. sub-section (1) thereof provides that on receipt of permission from the govt. under section 64, the academic council of the university shall consider first time affiliation to the new college or institution by following the prescribed procedure given in sub-section (2) and after taking into account whether, and the extent to which the stipulated conditions have been fulfilled by the college or institution. sub-section (1) gives finality to the decision of the academic council in that regard. the learned counsel for the petitioner has submitted that in the matter of grant of affiliation, the academic council has to satisfy itself after making an enquiry as contemplated under sub-section (2), and in his submission, once the state govt. grants permission there is no power with the academic council to decline first time affiliation. the said submission is ill founded and misconceived, inasmuch as the contents of sections 65(1) and 65(3) vests the academic council with absolute discretion, either to grant affiliation or reject the same. the said position clearly emerges from the latter part of sub-section (1) which lays down that the university shall consider the grant of first time affiliation after taking into account whether, and the extent to which, the stipulated conditions have been fulfilled. sub-section (3) as well, empowers the academic council to decide whether affiliation should be granted or rejected. the moot question that requires consideration is that if the state govt. grants permission/approval in exercise of powers under the proviso to sub-section (5) in breach of the conditions contained in the perspective plan, is it or is it not open for the academic council (health university) to decline or reject the affiliation claimed by the management. as sub-section (1) of section 65 gives finality to the decision of the academic council in regard to its decision about grant or refusal of affiliation, it is obvious that the permission/approval granted by the state govt. cannot have any bearing on the issue of grant of affiliation. the power of the health university in the matter of grant of affiliation or rejection thereof, in conformity with the perspective plan is absolute.12. in the present case, the health university's insistence, that unless and until the conditions contained in the perspective plan, in regard to opening of a new nursing college are complied with, it will not grant first time affiliation, could be faulted and the answer to the same is an emphatic negative. the matter is no longer res-integra and the issue is concluded by the judgment of the apex court reported in 2002 (4) m.l.j, 450 'state of maharashtra v. indian medical association and ors.' in the said judgment, the apex court has categorically held that even the state govt. is bound by the perspective plan prepared by the university qua private management. the supreme court has recorded the conclusions in para. 18 of the said judgment and relevant conclusion for the present case is, conclusion no. (f) which reads thus :--'(f) that, the perspective plan prepared by the university binds the state government qua private management or anybody else excepting the state government applying for permission of the state government to open a medical college;13. in this view of the matter, i reject the first contention canvassed by the learned senior counsel shri shah, for the petitioner.14. turning to the second submission, the learned advocate has pointed out that besides being possessed of the approval/permission granted by the state govt., the petitioner has also been granted permission by the nursing council. it is then submitted that the petitioner is running a big hospital by name godavari hospital having around 300 beds. it is claimed that the petitioner institution is having accommodation facility, girls hostel, sufficient staff and that the national board of examination, new delhi has granted accreditation to the obstetrics and gynaecology speciality of 3 years from july 2002 to june 2005, whereby, godavari hospital is permitted to train 2 d.n.b. candidates each year in speciality. in this regard, elaborate averments are made in para 14 of the petition. it is averred,'similarly, the college of physician and surgeon of bombay has also recognised the hospital of the petitioner institution provisionally for the period of three years from 9-7-2002 to 8-7-2005 for the training to the candidates for dgo and dfp courses. these courses are recognised by the medical council of india. hereto annexed and marked as annexure 'j' collectively are the copies of the recognitions given by the national board of examinations and college of physicians and surgeons of bombay.'. in para 15 it is averred, 'the petitioner states and submits that the petitioner has also sought the no objection certificate from various hospitals at jalgaon to allow it for the purposes of training to the students of nursing college. it is also pertinent to note that the civil surgeon, jalgaon, has permitted to undergo the training to the students of the nursing college to be run by the petitioner institution'.on the basis of the said averments, the learned senior counsel emphatically states that though not in letter, in spirit, the conditions contained in the perspective plan are complied with. he submits that the petitioner has made substantial compliance of the perspective plan, its requirements and conditions. no doubt, the petitioner seems to be possessed of infrastructure, so also, permission/approval from the government and the nursing council, and it also appears that the petitioner has spent enough amount, with a view to open the new college. it is also difficult to hold that had the petitioner been granted an opportunity to demonstrate and explain its stand in regard to substantial compliance of the requirements of the perspective plan, no change in the decision of the health university/academic council, in the matter of grant of affiliation, was possible. when the academic council, in exercise of powers under section 65 declines to grant first time affiliation, then the said decision does adversely affect the civil rights of the petitioner and/or the management claiming affiliation and as such, it is necessary to read the principles of natural justice in section 65 of the act. i am of the clear view that before rejecting the application seeking first time affiliation, the petitioner had a right of being heard in the matter, so that the petitioner could have demonstrated that it has substantially complied with the requirements of the perspective plan.15. on the other hand, shri dhorde, the learned counsel for the respondent has justified the stand taken by the health university.16. having regard to the facts and circumstances of the case, coupled with the denial of an opportunity of hearing to the petitioner by the academic council, before rejecting the application seeking first time affiliation, it would be in furtherance of cause of justice to quash and set aside the impugned orders passed by the health university (academic council). it would also be in furtherance of cause of justice to direct the academic council of the health university to grant an opportunity of hearing to the petitioner and then take a decision in regard to grant or refusal of first time affiliation. hence, i pass following order.'the impugned orders dated 8-11-2002 and 20-4-2003 passed by the health university are quashed and set aside. the application moved by the petitioner seeking first time affiliation stands restored. the academic council of the health university is directed to grant an opportunity to the petitioner of being heard in the matter and thereafter proceed to take decision, whether to grant or refuse first time affiliation, in accordance with law.'17. rule made absolute in above terms, with no orders as to costs.